Nevada, then Illinois, now Virginia… the ERA is about to get its 38 states

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Supporters of the Equal Rights Amendment rallied outside the Capitol in Richmond, Virginia on the first day of the 2019 General Assembly session in January. (Photo: Ned Oliver, Virginia Mercury)

WASHINGTON — In 2017, Nevada became the first state in more than four decades to ratify the Equal Rights Amendment.

The ERA was first introduced in Congress in 1923 and was passed overwhelmingly by the House and Senate in the 1970s, but has failed to win approval by the 38 states needed for ratification. 

Nevada was the 36th state to ratify the ERA, the first state to ratify it since North Dakota in 1975.

Last year, Illinois became the 37th.

Now, backers of the amendment are pinning their hopes on Virginia after this month’s elections handed Democrats control of both houses of the Virginia General Assembly. The state is widely expected to ratify the ERA after Democrats assume power in January. 

Wednesday, the U.S. House advanced a resolution that aims to ease ratification of the Constitutional amendment that would ensure equality for U.S. citizens under the law, regardless of their sex. 

But there are some thorny legal issues that could complicate the process and are almost certain to land the matter in the courts if Virginia or another state does become the 38th state to ratify the ERA. 

One prominent issue: a congressional deadline imposed when Congress passed the ERA. Lawmakers initially set a March 1979 ratification deadline for states, which was later extended to June 1982. But the amendment still hadn’t gotten the backing of 38 states when that deadline expired. 

On Wednesday, the U.S. House Judiciary Committee attempted to nullify that deadline entirely. 

The panel voted 21-11 along party lines to approve a resolution from Rep. Jackie Speier (D-Calif.) that would remove the deadline initially laid out in 1972. The resolution, which now heads to the full House for a vote, has the backing of 217 co-sponsors, including two Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York.

Nevada Reps. Steven Horsford, Susie Lee and Dina Titus, all Democrats, are also co-sponsors. 

Sen. Ben Cardin (D-Md.) has introduced a Senate version of the resolution to remove the ERA deadline. His effort has the backing of Sens. Lisa Murkowsi (R-Alaska), Susan Collins (R-Maine) and Angus King (I-Maine). But it’s unclear whether the effort will gain traction in the GOP-controlled Senate. 

House Democrats hailed Wednesday’s vote as a historic event, lamenting the fact that the ERA hasn’t yet been added to the Constitution. 

Rep. Zoe Lofgren (D-Calif.), who now sits on the Judiciary Committee, worked on the ERA and on the deadline extension in the 1970s, when she was a congressional aide. She said there was “substantial discussion” at the time about whether the deadline extension “was even necessary,” because “it’s not clear that Congress can limit the time.” 

She voted this week to support the resolution to remove the deadline because it’s “better to be safe than sorry,” she said, but she believes that if Virginia ratifies the ERA, it will “in fact become part of the Constitution.” 

But Republicans on the panel warned that Congress can’t do away with the deadline set decades ago. 

Congress does “not have the constitutional authority to retroactively revise a failed constitutional amendment,” said Rep. Doug Collins of Georgia, the top Republican on the Judiciary panel. He accused Democrats of attempting to subject citizens in all 50 states to the “current political trend in just one state.” 

Republicans also said that adding the ERA to the Constitution would limit states’ ability to impose limits on abortions. 

“It is well understood that the language used in the ERA would not protect women but would prevent states’ voters from enacting any limits on abortion up to the moment of birth,” Collins said. 

According to the abortion rights advocacy group NARAL, ratification of the ERA “would reinforce the constitutional right to abortion by clarifying that the sexes have equal rights, which would require judges to strike down anti-abortion laws because they violate both the constitutional right to privacy and sexual equality.”

Some of the ERA’s supporters, meanwhile, have downplayed a connection between the ERA and abortion rights. Speier, the lead sponsor of the resolution that passed the committee on Wednesday, said earlier this year that the ERA is “no stalking horse for abortion,” and emphasized that the proposed amendment isn’t a ploy to enshrine additional abortion protections, Vice reported.

Robin Bravender
Robin Bravender is the Washington, D.C., bureau chief for States Newsroom, a network of state-based nonprofit news outlets that includes Nevada Current.